Sophie Reid

In brief, the Act makes it an offence in Scotland for someone to act in a certain way (a) within a safe access zone for premises that provide abortion services and / or (b) within a building situated inside the boundary of a safe access zone which is visible or audible from the safe access zone. 

Rose Docherty was recently charged with carrying out acts which were contrary to section 4(1)(a) of the Act by displaying various placards within the safe zone of Queen Elizabeth University Hospital. The criminal proceedings against her were dropped, for the time being.

In the very recent written decision, it was held that there was incompatibility with Rose Docherty’s freedom of expression rights (breach of her article 10 European Convention of Human Rights) when she was charged with the criminal offences under the Act. 

The question to be decided by Sheriff Reid in this instance was whether the specific criminal charges she was indicted on, were incompatible with her article 10 rights as opposed to the Act, as a whole, being in breach of individuals’ article 10 and article 14 (prohibition of discrimination) rights. The latter submission was made, albeit it was reserved meantime – i.e. potentially tbc.

The sheriff’s reasons for doing so were (a) that the charges brought against her failed to specify that there was another person present within the safe access zone at the same time as she carried out the act(s) complained of and (b) that there was no proof that another person was in the zone to access, provide or facilitate the provision of abortion services. These were necessary components for a charge under section 4(1)(a) to be successful. As there was failure, at the time, to aver and establish this and there were omissions of the alleged crime, it was held there was incompatibility with article 10 because the prosecution was proceeding on criminal charges that weren’t “prescribed by law” (a legitimate reason in law for article 10 ECHR to be subject to restrictions).

The Act, compared to other statutes in Scotland, is one of the shorter and more straightforward ones. The decision does, however, reinforce that attention to detail is crucial.

Sophie Reid is a solicitor at Aberdein Considine